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FORT LAUDERDALE, Fla. — Florida appellate judges on Tuesday questioned the legality of search warrants that let police secretly video record New England Patriots owner Robert Kraft and others paying for massage parlor sex, pressing a prosecutor on his contention that the warrants were legally valid.

Deputy Solicitor General Jeffrey DeSousa found himself repeatedly queried by the three-judge panel as he tried to persuade them that the warrants and searches met all constitutional protections and that they should overturn lower court rulings that barred the recordings’ use at trial.

Misdemeanor charges against Kraft, 79, and other customers would have to be dropped if those rulings stand, although felony charges against the spa owners might proceed as there is other evidence against them.

Kraft and others were charged in February 2019 in a multi-county investigation of massage parlors that included the secret installation of video cameras in the spas’ lobbies and rooms. Police say the recordings show Kraft and other men engaging in sex acts with women and paying them.

Police say they twice recorded Kraft, a widower, paying for sex at the Orchids of Asia massage parlor. Kraft has pleaded not guilty but issued a public apology.

Judge Robert Gross, who presided at the Florida Fourth District Court of Appeal hearing, seemed taken aback by DeSousa’s contention that he and his colleagues should primarily consider the plain language of the Fourth Amendment. It says judges can issue warrants if police demonstrate probable cause of a crime, that warrants must specify the place to be searched and what can be seized.

Gross told DeSousa he seemed to be ignoring numerous rulings by the U.S. Supreme Court expanding Fourth Amendment protections since the 1960s, including some that restrict electronic surveillance by police.

“You are getting us off on the wrong foot by focusing on the language of the Fourth Amendment when we should be focusing on the Supreme Court jurisprudence….that is heavily weighted against you,” Gross told DeSousa.

The 90-minute hearing included arguments on whether cameras were necessary; on whether the police violated the privacy of customers who simply received massages; and on the proper sanction if the defendants’ rights were violated.

The attorneys for Kraft and the other defendants argued that police failed to minimize the privacy violations they committed by recording innocent customers, including women, who received legal massages.

“These cameras, that were put into private massage rooms where patrons would be undressing as a matter of course, they recorded everything,” Kraft attorney Derek Shaffer said. He said Kraft “had the same reasonable expectation of privacy that any massage patron going to a licensed facility would be entitled.”

Attorneys also argued the cameras weren’t necessary as police already had enough evidence to charge the spa owners, including bank records, website advertising, outside video surveillance and napkins containing bodily fluids retrieved from garbage bins.

The only proper punishment for prosecutors and police, they argued, is to throw out all recordings.

The front entrance of the Orchids of Asia Day Spa in Jupiter, Florida.AP

DeSousa argued that police and prosecutors need the recording to convict the owners of felonies. The owners must be shown receiving payments from the prostitutes and the only way to get that is to install cameras, he said.

He said detectives had to fully record all massages, because the sex acts happened at their conclusion and 95% of male customers received one. While no female customers paid for sex, they were few in number and to not record them could be seen as discriminating against men, he said.

DeSousa said even if the court finds police violated innocent customers’ privacy rights, the Supreme Court has ruled that in most circumstances, only improperly seized evidence should be thrown out. Since Kraft, the other men and the masseuses were engaged in crimes, their recordings should be permitted, he said.

“Given the unique and difficult circumstances confronting these officers, the conspiracy, the logistics of the operation, what they reasonably anticipated they would see and the difficulty of knowing at the start of any given massage will this end with a happy ending or will it not, we think what law enforcement did here was entirely reasonable,” DeSousa said.

The court usually takes weeks to issue rulings. The losing side will likely appeal to the state Supreme Court, which could accept the case or let the decision stand.

If convicted, Kraft would likely receive a fine, community service and other sanctions, but he could also be suspended or otherwise punished by the National Football League.

News Source: newsbrig.com

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Ex-officers in George Floyd case may seek venue change, raising questions of bias

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BY TOM HALS

The former Minneapolis police officers charged in the death of George Floyd will likely seek to relocate their trials in hopes of finding sympathetic jurors, but legal experts said doing so could reinforce claims of systemic racism in the justice system.

While trials are rarely moved in Minnesota, legal experts said the Floyd cases might be exceptions because the Minneapolis police chief and other officials spoke publicly about the episode and called Floyd’s death a murder, a departure from norms that defendants may argue prejudiced jurors.

A video of the May arrest and death of Floyd, who was Black, showed officer Derek Chauvin, who is white, kneeling on Floyd’s neck for nearly nine minutes as he went lifeless, sparking protests globally and igniting a national discussion on race.

Chauvin is charged with second-degree murder, and the three other former officers, who are white, Black and Asian American, are charged with aiding Chauvin.

In addition, while it might be hard to find jurors anywhere who have not seen the video, demonstrations in Minneapolis against police brutality could arguably intimidate local jurors, experts said.

In a Minneapolis court on Monday, Hennepin County District Court Judge Peter Cahill said he might consider in September arguments to move the case, which goes to trial in March. If the cases were moved, the new venue would be another Minnesota county as the charges are under state law.

In several high-profile, racially charged cases in the past juries were more lenient with defendants of the same race as the majority of jurors.

“If you go to a less diverse place, what that would mean for the diversity of the jury pool and the question of bias?” asked Justin Hansford, director of the Thurgood Marshall Civil Rights Center and professor at Howard University School of Law.

When defense attorneys have convinced judges to move trials from the jurisdictions of the crimes, those rare cases usually were marked by frenzied media coverage that judges agreed made finding an impartial local jury impossible.

Former football star O.J. Simpson, who is Black, was acquitted on double murder charges in 1995 by a downtown Los Angeles jury, comprised of nine Blacks, two whites, and one Hispanic person, after the case was moved from nearby Santa Monica, where the crime occurred and the population is majority white.

“The (OJ) Simpson case teaches us that venue can be the difference between an acquittal and a conviction,” said defense attorney Brian McMonagle, who defended comedian Bill Cosby in his first sexual assault trial.

Earl Gray, a lawyer for Thomas Lane, one of the former officers charged in Floyd’s death, told Reuters that if Minneapolis officials continued to describe the case as a murder he expected the judge to move the trial.

Lawyers for the other officers and the Minnesota attorney general who is prosecuting the case declined to comment or did not respond to a request for comment.

“They have got to get this moved,” said Paul Applebaum, a Minnesota attorney, referring to the defense team. He said if they get a jury with mostly minority jurors, “they are cooked.”

While ordering a new venue may be necessary to protect the defendants’ rights of due process and impartial jury, moving trials involving police defendants to less diverse areas has stirred allegations of injustice in the past.

Four white New York City police officers were charged in the 1999 death of Amadou Diallo, a Black man. The shooting touched off days of protests.

The trial was moved to Albany County, New York by an appellate court that ruled Bronx jurors would be “under enormous pressure to reach the verdict demanded by public opinion.”

The officers were acquitted by a jury of four Blacks and eight whites. Albany County is almost three-quarters white while whites and Blacks are about equal in Bronx County, both around 44% of the population.

The 1992 trial of four Los Angeles police officers accused of using excessive force in the arrest of Black motorist Rodney King, which like Floyd’s arrest was caught on video, was moved to suburban Ventura County from Los Angeles.

None were found guilty by the mostly white jury, sparking widespread protests.

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